Oral Arguments in Trump v. Anderson Part II: Justice Jackson Gets “Office under the United States”

[This is the second installment in a series about the oral argument in Trump v. Anderson. The first installment focused on Justice Gorsuch’s colloquies about “Officers of the United States.” This installment will focus on Justice Jackson’s colloquies about “Office under the United States.”]

In the lower courts, Trump argued that the President was not an “Officer of the United States” and that the Presidency was not an “Office under the United States.” Seth Barrett Tillman and I are the primary proponents of the former argument, and Kurt Lash is the primary proponent of the latter argument. Either argument would decisively win the case for Trump. Yet, before the Supreme Court, the Petitioner’s opening brief barely mentioned “Office under the United States.” At most, Petitioner said the phrase was “ambiguous” in Section 3. The issue was probably preserved, but it was clear that Petitioner did not forcefully argue the position. Going into Court, it seems that Jonathan Mitchell, counsel for Petitioner, was not willing to fully embrace the “Office under the United States” argument. Why? He was worried about an Emoluments boomerang. This may have been a deliberate strategy at the outset, but it is one that should have been abandoned.

Justice Jackson gets the difference between “Officer of the United States” and “Office under the United States”

Throughout this litigation, critics have consistently charged that there is no difference between an “Officer of the United States” and an “Office under the United States.” All of these phrases, critics say, refers to all federal positions. But Justice Jackson had a nuanced position.

Justice Jackson observed that there are “two parts of the first sentence of Section 3. The first is a list of offices that a disqualified person is barred from holding, and the second are specific circumstances that give rise to disqualification.” She asked Jonathan Mitchell, “So are you arguing both in this case or just one? Are you arguing both that the office of the presidency should not be considered one of the barred offices and that a person who previously took the presidential oath is not subject to disqualification?” Mitchell replied, “We are arguing both, Your Honor.” 

Jackson correctly observed, “I don’t see that in your brief. I see a lot of focus on the second but not on the first.” Mitchell acknowledged, “there is definitely more focus on the second, and we acknowledge that we have a somewhat heavier lift on the first point.” I agree with Mitchell. The argument on “Office under the United States” is a heavier lift. Indeed, since 2012 Tillman has expressly declined to take a position on this issue. I get why Mitchell led off with that answer. 

What happened next was unexpected. Justice Jackson pushed back. She asked, “Why? It seems to me that you have a list and president is not on it.” This argument would apply to both the first and sentence sentence. That is, the President is not an “Officer of the United States” and not an “Office under the United States.” Mitchell replied, “that’s certainly an argument in our favor.” Yes, it is! Justice Jackson was throwing him an unexpected life preserver. He continued, “with respect to ‘officer of the United States,’ that’s used repeatedly in the Constitution and the Commissions Clause and the Appointments Clause and also in the Impeachment Clause, and every time it appears, it’s used in a way that clearly excludes the president.” 

Mitchell completely ducked “office under the United States.” Jackson interjected, “No, I understand. But that’s the second argument.” Jackson tried to return to the first clause, which has a list of offices that a person is barred from holding.” From my vantage point, she rattled these off from memory without looking down at her notes: “we see it begins with senator, representative, elector of the president and vice president, and all other civil or military officers offices.” Mitchell (rightly) corrected her “Offices under the United States.” She took the correction, and said “Offices under the United States.” Jackson continued, “But the word ‘president or vice president’ does not … appear specifically in that list.” 

Jackson posed the question: “So I guess I’m trying to understand, are you giving up that argument?” Mitchell insisted, “No, we’re not giving it up at all.” He recognized that Jackson had a point. “You’re right, the president and the vice president are not specifically listed.” He could have stopped there. But he then provided the other side’s argument. “But the Anderson litigants claim that they are encompassed within the meaning of the phrase ‘office under the United States.'” As a matter of advocacy, lawyers should always be willing to acknowledge, if pressed, weaknesses in a position. I don’t see the advantage to whiffing at Justice Jackson’s softballs. If Jackson wants to switch the Respondents’ argument, let her bring it up. Don’t unilaterally cave.

Justice Jackson continued to try to bail out Mitchell. “And do you agree [with the Respondents] that the Framers would have put such a high and significant and important office, sort of smuggled it in through that catch-all phrase?” No elephants in mouseholes. She was teeing up the Scalia line! Mitchell stated, “No, we don’t agree at all. That’s why we’re still making the argument that the presidency is excluded from the covered offices that are listed at the beginning of Section 3.” This was Mitchell’s clearest statement on point. But Justice Sotomayor interrupted.

Justice Sotomayor said, “I’m sorry, your brief says you didn’t take a position on that point. And your brief said I don’t have the –the cite, I –I apologize.” Justice Sotomayor was mistaken. They never actually said this in their brief. (Sotomayor made a number of errors throughout the day, which I will discuss below.) I think that Sotomayor drew a fair implication from the brief, but it was never stated expressly. Justice Sotomayor pivoted. “You don’t affirmatively argue that point I think is what your brief said.” That’s closer. 

Mitchell parried that we “certainly argued it in the reply brief.” That was enough to answer Justice Sotomayor’s question. But he then proceeded to undermine the very argument that Justice Jackson was pushing. Mitchell said, “we did point out in our opening brief that there are potential issues if this Court were to rule on “office under” because that phrase appears in other parts of the Constitution, including the Emoluments Clause, the Impeachment Disqualification Clause.” 

As I sat there in the Court, with my mouth agape, I turned to the person next to me and said, “Who is he representing?” These are points you begrudgingly argue if pressed. Don’t volunteer these points when no one asks about them. Why give away arguments? Mitchell was petrified of the Emoluments Clause and the Impeachment Disqualification Clause. He wouldn’t even let those issues be at play. Our brief devoted an entire section to those two provisions quite deliberately. And our motion for leave to participate at oral argument was framed, in part, to address those two clauses, which the Petitioner would refuse to address. During oral argument before the Colorado Supreme Court, Scott Gessler, Petitioner’s counsel, cited the Washington gifts, saying “no one thought that [the Clause] applied to George Washington.” Recording at 2:02:25. Gessler zealously represented his client. But Mitchell was terrified of making that argument. Why?

Justice Sotomayor tried to “pin down [Mitchell’s] principal argument on Section 3.” He “argue[s] that, even though the president may or may not qualify as an office under the United States . . .  the president is not an officer of the United States, correct?” Mitchell replied, “we believe the presidency is excluded from ‘office under the United States,’ but the argument we have that he’s excluded, the president, as an officer of the United States is the stronger of the two textually [and] has fewer implications for other constitutional.” Again, raising implications that no one asked about.

Justice Jackson tried to salvage what could be a winning argument. She offered a historical perspective: “Section 3 was unique, that there was something happening with Section 3 that could explain why certain offices were left off or whatnot.” Mitchell should have said, “Absolutely, Justice Jackson, we agree.” The most he could muster was “Perhaps.” He immediately began to undercut the argument Jackson served on a silver platter. “[T]here are also implications from other parts of the Constitution which really help us on the ‘officer of the United States’ argument in that second part of Section 3 but somewhat cut against us when it comes to ‘office under the United States.'” Mitchell favorably cited the Respondents brief to undercut Justice Jackson’s offering: “And the Anderson litigants point this out in Footnote 9 in the red brief where they say, if this Court were to say the presidency is an excluded 16 office under the United States, that could imply, for example, the president is not covered by the Emoluments” Clause. 

I could not believe what I was hearing. President Trump’s lawyer was dismissing favorable questions from Justice Jackson by citing those who seek to remove Trump from the ballot. I did not participate in any of Mitchell’s moots, but I can’t imagine this strategy would have fared well.

Kagan and Mitchell agree

It did not get much better for Mitchell. Justice Kagan observed that there was not “a lot of evidence that the founding generation –or the generation that we’re looking at [in 1868] is really thinking about ‘office’ versus ‘officer of the United States.'” As a factual matter, that statement is wrong. During debates about the Presidential Succession Act, there were discussions about whether the Speaker was an “officer” or an “officer of the United States.” During the Blount Impeachment Trial, Jared Ingersoll stated that “Officer of the United States” was different from “Office under the United States.” These debates continued concerning the Ironclad Oath Statute of 1862. There were debates in the Louisville and Cincinnati newspapers from April 1868, which were developed in our brief. Mitchell could have responded that Kagan’s premise was flawed. He didn’t. He accepted it. He refused to talk about any history that supported his case.

In light of (what Kagan perceived as) an empty historical record, Kagan suggested a different inquiry: is Mitchell’s proposed “rule a sensible one?” (It is not clear if Kagan is referring to Justice Jackson’s position about the barred positions, or the argument about the triggering positions.) Kagan continued, if the Framers “had thought about it, what reason would they have given for that rule? And it does seem as though there no particular reason, and you can think of lots of reasons for the contrary to say that the only people who have engaged in insurrection who are not disqualified from office are presidents who have not held high office before. Why would that rule exist?” Baude and Paulsen state the rule almost exactly the same in their paper. They write: “Far more sensible and straightforward to conclude, we think, that the officeholder holding the office of President is an officer ‘of’ the United States who holds office under the authority of the United States.” 

Perhaps in the faculty lounges of Harvard and Chicago, “sensible” rules are universally agreed upon. But in this litigation, there is another side. Jonathan Mitchell could have given a forceful defense of this position. He could have replied that the Framers would have had no reason to think about a person who took one oath, and only one oath as President, then engaged in insurrection, then ran for re-election. He could invoked the history that Justice Jackson advanced: the Framers were worried about low-level officials in the South, not the President. He could have said that Baude and Paulsen have rejected textualism and originalism. But Mitchell didn’t give any of these arguments. He surrendered. He gave into Justice Kagan. He said,  “Yeah. I don’t think there is a good rationale…” 

A conservative Supreme Court advocate recently told my class a rule of thumb: whatever Justice Kagan asks you, disagree, and whatever Justice Alito asks you, agree. It is a crude heuristic, but it works in the abstract. Why? Kagan is trying to trick you, and Alito is trying to help you. Mitchell, for reasons I cannot understand, agreed with Kagan’s hostile question, but disagreed with Jackson’s friendly question. Evey moot court coach in America should carefully study Mitchell’s performance, and consider if his answer was the right one.

A Compromise

The closest Mitchell gave to explaining why those words were chosen was based on a “compromise” in Section 3. He said:

But, even if they were knowable, we’re not sure they would be relevant in any event because this language, especially in Section 3, was enacted as a compromise. There were certainly radical Republicans who wanted to go much further if you look at some of the earlier drafts that were proposed. Some people wanted to ban all insurrectionists from holding office regardless of whether they previously swore an oath. Some people wanted to go further and ban them even from voting….

I inserted ellipses here deliberately, because what came after this bad start was an argument advanced in the Tillman brief about a compromise. Mitchell said: 

I don’t think there is a good rationale given that this was compromise legislation. And sometimes this happens with statutory compromises and even constitutional compromises. There’s an agreed-upon set of words that can pass both Houses of Congress, but different legislators may have had goals and motivations. They didn’t all get their way. In a compromise, everyone goes away miserable. But this was the text that was settled upon.

Here is how the Tillman brief describes the compromise:

Section 3 of the Fourteenth Amendment was a compromise. Early versions of Section 3 would have restricted the franchise of all former confederates, or restricted the ability of all former confederates to hold public office. But the most the 39th Congress could agree upon was to “exclude from certain offices a certain class of persons.” Griffin’s Case, 11 F. Cas. at 25 (emphases added). Therefore, the Framers reached to extant, limited language in the Oaths Clause, and in doing so carried forward that “old soil.” Perhaps some expected Section 3 to cover a person who only took one oath as President, but that is not what the ratified text means. . . .

Section 3 was, in every sense of politics, a compromise. Congress could have provided that all insurrectionists would be disqualified from holding all federal and state positions, but that is not the language the Framers chose. Rather, Section 3 applied to a specific subset of former confederates who had taken constitutional oaths for four categories of positions. The oath provision of Section 3 closely tracks the Oaths Clause. (Page 13, 25).

We put this article forward in anticipation of the question that Justice Kagan advanced. What makes that argument complete is the Article VI Oath Clause. Mitchell could have argued that the Framers borrowed the language from the Article VI Oath Clause, which does not apply to the President. Mitchell never even hinted at the Oath Clause, I think, because he was concerned about a Vice President boomerang. We flagged this point in our Motion for Leave to participate in oral argument:

Respondents’ merits brief faults Petitioner for not addressing several questions about how the phrase “Officers of the United States” is used in the Constitution of 1788. Respondents charge that Petitioner’s interpretation of the Appointments Clause “cannot account” for the phrase “whose Appointments are not herein otherwise provided for.” Resp. Br. at 40. Respondents charge that under Petitioner’s reading of the Article VI Oath Clause, “the Vice President would be exempt from the oath.” Id. at 41. Respondents charge that the President is listed separately in the Impeachment Clause to “avoid any uncertainty engendered by the fact” that the President is both a military officer and a civil officer. Id. These issues were not addressed by the Petitioner’s merits brief, but were explained by Amicus’s brief and scholarship.

But, as I noted in the first installment, Mitchell refused to even mention the Article VI Oath Clause. The much celebrated Scalia letter never came up. I wonder if Mitchell would be willing to say that Justice Scalia, for whom he clerked, was wrong. If he wasn’t, that might explain why he stayed away from the Oath Clause argument.

Jackson was “surprised”

During the seriatim round, Justice Jackson was surprised at how Mitchell handled the colloquy with Justice Kagan:

Going back to whether the presidency is one of the barred offices, I guess I’m a little surprised at your response to Justice Kagan because I thought that the history of the Fourteenth Amendment actually provides the reason for why the presidency may not be included. 

Jackson then explains how that history shows the Framers were not focused on the presidency, but were instead worried about low-level positions in the South. Jackson answered Kagan’s question.

I didn’t see any evidence that the presidency was top of mind for the Framers when they were drafting Section 3 because they were actually dealing with a different issue. The pressing concern, at least as I see the historical record, was actually what was going on at lower levels of the government, the possible infiltration and embedding of insurrectionists into the state government apparatus and the real risk that former Confederates might return to power in the south via state-level elections either in local offices or as representatives of the states in Congress. And that’s a very different lens. Your concern is trying to make sure that these people don’t come back through the state apparatus and control the government in that direction seems to me very different than the worry that an insurrectionist will seize control of the entire national government through the presidency. 

This is exactly the argument that Mitchell could have given. Kurt Lash made this point eloquently. But Mitchell resisted it. Why? Justice Jackson (and everyone else in the courtroom) was surprised.

And so I just am surprised that you would given the text of the provision and the historical context that seems to demonstrate that their concern or their focus was not about the presidency, I just don’t understand why you’re giving that argument up.

Whose bingo card had Ketanji Brown Jackson advocating for a complete and total victory for Donald Trump? 

How should Mitchell have responded to this golden egg? The correct answer is “Absolutely, Justice Jackson. We agree.” I’ve heard SG Elizabeth Prelogar give that answer to Justice Kagan more times than I can count. Take a gift when it is given. But no. How does Jonathan Mitchell respond? “There is some evidence to suggest that, Justice Jackson, but…” He was about to parry to explain why KBJ was wrong. I was shocked.

Jackson tried again, “Is there any evidence to suggest that the presidency was what they were focused on?” Again, the answer is “Yes.” Mitchel mustered, “There is some evidence of that.” Some. But Mitchell proceeded to undermine Jackson’s argument with the Jefferson Davis horrible. “There were people saying we don’t want Jefferson Davis to be elected president.” 

Who is representing Trump here–Mitchell or Jackson? Why bring this argument up? Let the other side bring it up, and respond. Don’t volunteer this point. And there are responses to this argument, which Kurt Lash, and Tillman-Blackman, have advanced. Mitchell doesn’t even bother. He just surrenders. Perhaps he was so intent on winning on narrow grounds, that he was unwilling to cede any arguments to the contrary. That approach may make sense in hindsight, since the Justices came out of the gate against disqualification. But if the arguments had gone south, Mitchell would have been stuck.

Mitchell then brought up the McKee draft, but he seems to suggest it cuts against the Lash position. He said  “there was also one of the drafts of Section 3 specifically mentioned the presidency and the vice presidency as offices–” That evidence, Lash argues, shows that the presidency is not covered by the ratified Section 3. Jackson jumps in, “but it wasn’t the final enactment.” Mitchell should have said, “yes, that is correct.” For reasons I cannot fathom, he continued to push back against her. “I’m sorry. It wasn’t the final enactment, but it does show that there was some concern by some people about Confederate insurrectionists ascending to the presidency.” 

No! The McKee draft shows the exact opposite. Mitchell made the other side’s argument! Mitchell threw Kurt Lash under the bus. (Perhaps it was for the best Mitchell didn’t mention Tillman-Blackman, because we would be covered in skid marks.) Kurt Lash has argued this earlier version, which was not adopted, shows that the later version did not cover the presidency. Mitchell is making the argument that the other side would. If this was Mitchell’s deliberate strategy, he made a terrible judgment call.

The next argument was perhaps the coup de grâce. Mitchell explained why he was not pushing the “Office under the United States” argument. He said, “we didn’t want to make a law office history type argument where you just look at the historical evidence and pick the evidence that we like and interpret it tangentially.” Law office history? Did someone inject Jonathan Mitchell with truth serum before the argument? “Law office history” is the sort of pejorative that historians use to attack originalists. Why is he saying that Justice Jackson and Kurt Lash are engaging in “law office history.” In what universe does the lawyer for Trump tear down his friends at the podium? And we come back to the boomerang. Mitchell feared that “the other side can come back with us and throw this countervailing evidence back in our face.” He was so afraid of what the other side might say about the Emoluments Clause that he undermined his own case. We all witnessed emolumental self-immolation. 

A “Gerrymandered” rule from “some scholars”

Justice Sotomayor objected to Mitchell’s argument concerning “Officers of the United States.” She said, “A bit of a gerrymandered rule, isn’t it, designed to benefit only your client?” As it turns out, Trump would be the only President in American history, other than Washington and (perhaps) Adams, who had not taken an oath that would subject him to Section 3. Mitchell replied, “I certainly wouldn’t call it gerrymandered. That implies nefarious intent.” Sotomayor interrupted him. “Well, you didn’t make it up. I know some scholars have been discussing it.” 

Some scholars? I think that is me and Tillman. I smiled in the gallery and waved at the bench. And no, we did not gerrymander this argument up for Trump. Tillman has been writing on this topic since 2008. 

Justice Sotomayor continued, “But just so we’re clear, under that reading, only the Petitioner is disqualified because virtually every other president except Washington has taken an oath to support the Constitution, correct?” Mitchell replied that John Adams may be an exception. “Every president to our knowledge. Every other president, John Adams might also be excluded because he took the oath as a vice president, which is not an officer.” This was the closest Mitch came to acknowledging the VP does not take an oath as an “Officer of the United States.”

Mitchell gave a candid response about the implications of his position: “it does seem odd that President Trump would fall through the cracks in a sense, but if “officer of the United States” means appointed officials, there’s just no way he can be covered under Section 3. The Court would have to reject our officer argument to get to that point.” On that much, I agree. You have to bite this bullet.

Along similar lines, Justice Kagan asked “is there any better reason for saying that an insurrectionist cannot hold the whole panoply of offices in the United States, but we’re perfectly fine with that insurrectionist being president?” Mitchell replied,  “I think that’s an even tougher argument for us to make as a policy matter because one would think, of all offices, the presidency would be the one you’d want to keep out the Confederate insurrectionists. That’s the commander-in-chief of the Army. So, again, that’s why we’re leaning more on the ‘officer of’ argument than the ‘office under.’ We’re not conceding ‘office under,’ but we definitely have the stronger textual case and structural case on ‘officer of the United States.'”

Kavanaugh and Jackson recognize the Democracy Canon

In Sweeping and Forcing (at pp. 578-79), Tillman and Blackman contend that even if the meaning of Section 3 is ambiguous, the Democracy Canon favors a reading that would expand the franchise. 

Because, as Attorney General Stanbery explained circa 1868, efforts to restrict the scope of democratic participation by positive law require us to be sure, and if in doubt, we give the benefit of that doubt to letting the candidate participate and letting the voter vote for the candidate of his choice. The Reconstruction Acts, 12 Op. Att’y Gen. 141, 160 (1867). The Democracy Canon demands no less. See generally Richard L. Hasen, The Democracy Canon, 62 STAN. L. REV. 69 (2009).

Scott Gessler, who represented Trump before the Denver trial court, raised this exact point during oral argument. And the trial court, which adopted our Officer argument, expressly invoked this principle in its decision:

To be clear, part of the Court’s decision is its reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent of Section Three. As Attorney General Stanbery again noted when construing the Reconstruction Acts, “those who are expressly brought within its operation cannot be saved from its operation. Where, from the generality of terms of description, or for any other reason, a reasonable doubt arises, that doubt is to be resolved against the operation of the law and in favor of the voter.” The Reconstruction Acts, 12 U.S. Op. Att’y Gen. 141, 160 (1867) (emphasis added).21

It is a powerful argument, in my view. The final paragraph of the Tillman-Blackman SCOTUS amicus brief invoked the same principle of democracy. 

By contrast, a holding that the President is not an “Officer of the United States” would authoritatively resolve the Section 3 case against the Petitioner. In that event, it will be the people, and not judges, or state officials, or Congress, who will decide.

Justice Kavanaugh, echoing several of his separate writings, made this point expressly during oral argument. He referenced a “background principle” of democracy:

Last question. In trying to figure out what Section 3 means and kind of to the extent it’s elusive language or vague language, what about the idea that we should think about democracy, think about the right of the people to elect candidates of their choice, of letting the people decide? Because your position has the effect of disenfranchising voters to a significant degree. And should that be something –does that come in when we think about should we read Section 3 this way or read it that way? What about the background principle, if you agree, of democracy?

Anyone who read Justice Kavanaugh’s Dobbs concurrence should have seen this argument coming.

During oral argument, Justice Jackson also expressly invoked the democracy canon. Patrick Murray brought up the Reverdy Johnson—Lot Morrill exchange. Jackson interjected that the fact that Johnson objected “at least suggest[ed] ambiguity” about the meaning of “Office under the United States.” She continued, “we had a person right there at the time saying what I’m saying, the language here doesn’t seem to include president, why is that? And so if there’s an ambiguity, why would we construe it to –as Justice Kavanaugh pointed out –against democracy?” Much the same can be said about “Officers of the United States.” The Louisville Kentucky newspaper our brief quoted adopted the same reading we do. Even if it is not the best reading–we think it is–that newspaper supports an invocation of the Democracy Canon.

At this point, Jonathan Mitchell replied, “No, Justice Jackson, we have a republic, not a democracy.” This didn’t happen. But it was believable. In all seriousness, the word “democracy” never left Mitchell’s mouth. Mitchell’s closing statements during the rebuttal should have been a stirring homage to democracy. Lock in the progressive votes! Kavanaugh and Jackson teed the issue up perfectly. Mitchell was representing the presumptive Republican nominee for the White House! Appeal to the need to let the people decide. Quote Judge Sutton. Something!  Instead we got a flat, boring track about the de facto officers doctrine. Yet another missed opportunity. 

When can Justice Jackson ask about “officer” stuff?

Jonathan Mitchell’s lead argument in his brief, and his opening statement, was that the President was not an “Officer of the United States.” He began: 

The first reason is that President Trump is not covered by Section 3 because the President is not “an officer of the United States” as that term is used throughout the Constitution. “Officer of the United States” refers only to appointed officials, and it does not encompass elected individuals, such as the President or members of Congress. This is clear from the Commissions Clause, the Impeachment Clause, and the Appointments Clause, each of which uses “officer of the United States” to refer only to appointed and not elected officials.

Yet, nearly twenty-four minutes would elapse before anyone mentioned the “Officer” issue. And it came up in a very unusual exchange. The transcript does not do it justice. Jump to 24:10. Justice Jackson asked a question about holding office, and then tried to pivot.

JUSTICE JACKSON: All right. Can I ask you –I’m just –now that I have the floor –


JUSTICE JACKSON: –can I ask you to address your first argument, which is the office/officer point?

As soon as she said that, my ears perked up. Finally, someone would ask about Mitchell’s lead argument? What happened next was bizarre.

Justice Kagan quickly turned around, looked at Jackson, and interrupted her and said “Could–Could…” As if she was telling Jackson to not ask that question now, but ask it later. Chief Justice Roberts chimed in, “Yeah, why don’t we?” Kagan continued, “Is that okay if we do this and then we go to that?” In other words, the Court would continue asking about self-execution now, and turn to the officer issue later.  Jackson, as if she had forgotten the plan, said, “Sure, sure, sure, sure.” Jackson said “sure” four times. It was awkward. Kagan replied, “You know, but-.” Jackson yielded, “Go ahead.” Jackson looked to the Chief Justice, “Will there be an opportunity to do ‘officer’ stuff, or should we…” Roberts smiled, chuckled, and said, “Absolutely. Absolutely.” Kagan then pivoted back to the execution issue.

I’ve listened to hundreds of Supreme Court arguments over the years. I have never heard the Junior Justice ask a question about the lead argument in the brief, when there was plenty of time left on the clock (Mitchell had 40 minutes), and the Chief Justice and another Justice told her to not ask a question, but instead ask it later. When I witnessed this exchange, I was shocked. What do we make of this? Was there some kind of plan in advance to save the office/officer questions for later in the hearing, or during the seriatim round? Do the Justices coordinate these sorts of things? Whatever the arrangement, Kagan, and maybe Roberts seemed to be in on it. Jackson, the junior justice, promptly acquiesced. It almost seemed from the rapport on bench that they had planned to save the officer questions for seriatim rounds. That is what I anticipated Kagan would do when she had uninterrupted time. (Ultimately, there was little appetite for “officer” stuff so Kagan kept her powder dry.) If Justice Alito interrupted Justice Kagan like that, Strict Scrutiny would have convened an emergency podcast titled, “Girl, interrupted.”

At the 29:00 mark, Chief Justice Roberts deemed it appropriate to talk about the “officer” stuff. Again, as if there was some kind of plan. He said, “why don’t we move on to the officer point.” Mitchell said, “Certainly.” The Chief looked at Justice Jackson, and said “Justice Jackson, I think you.” Justice Jackson proceeded, which I discussed above. 

Chief Justice Jackson?

As we were walking out of the Court, Seth remarked to me that Justice Jackson should be in line for the next Chief Justice vacancy during a Democratic administration. She demonstrated that she was able to elevate above the politics of the case and adopt a careful originalist and textualist position that (almost certainly) runs against her priors. Seth thought she was genuine, and meant what she said. I agree. In the future, Senate Republicans may be comforted that Jackson could be better trusted with power than other candidates about whom they know less or appear to be committed ideologues.

For many years I joked that Justice Kagan should replace Chief Justice Roberts. Well, Roberts has shown no signs of retirement. But based on this argument, I think Seth is right. Justice Jackson has surpassed Justice Kagan on that short-short list.

In candor, Justice Kagan seemed a bit off her game yesterday. Her questions were not as focused as usual. I was expecting a fusillade about offices and officers, but it never came. Plus, I couldn’t get a clear sense of where she was going. Maybe she doesn’t know. And her interruption of Justice Jackson was bizarre. Again, if Alito had done that, he would have been excoriated. By contrast, Justice Jackson brought her A-game. In the highest profile case of her career, she garnered the most headlines, and showed that she can put herself above the politics. She was unflinching, even in the face of recalcitrant arguments from (checks notes) Trump’s lawyer.

Justice Robert H. Jackson always wanted to be Chief Justice. Now, maybe, there can be a Chief Justice Jackson.

What about Justice Sotomayor?

Thursday was not Justice Sotomayor’s best day at the Court. She seemed very confused. Mitchell repeatedly referred to “Term Limits.” He was obviously referring to the case, United States Term Limits v. Thornton (1995). This is a lead precedent mentioned over and over again in the briefing. But over the course of several questions, Sotomayor expressed bewilderment why Mitchell was talking about the two-term limit in the Twenty-Second Amendment. She thought he was talking about the concept of term limits, and not the case Term Limits.

JUSTICE SOTOMAYOR: You keep saying Term Limits. There are other presidential qualifications in the Constitution, age. Citizenship. There’s a separate amendment, the Twenty-Second Amendment, that doesn’t permit anyone to run for a second term. . . .

JUSTICE SOTOMAYOR: I’m wondering why the Term Limits qualification is important to you.  Are you setting up so that if some president runs for a third term, that a state can’t disqualify him from the ballot?

Mitchell (I don’t think) caught onto the confusion. I was sitting next to the press box, and the reporters were shaking their heads. Eventually, the Chief Justice had to intervene and explain that Term Limits referred to the case:

CHIEF JUSTICE ROBERTS: Now just a point of clarification so we’re all on the same page. When you say “Term Limits,” you mean our decision in  the Term Limits case

MITCHELL: Yes. I’m sorry.

CHIEF JUSTICE ROBERTS: –not the constitutional provision governing term limits?

MITCHELL: Yes. U.S. Term Limits against Thornton. Maybe I should call it Thornton instead of Term Limits.

CHIEF JUSTICE ROBERTS: That would be easier.

MITCHELL: I’m sorry.

There are many things Mitchell could apologize for, but this is not one of them. In class, I often have to explain to my students that The Civil Rights Cases is an actual case, and not just a case about civil rights. I can empathize with the Chief.

At another point, Sotomayor described Chief Justice Chase’s opinion in Griffin’s Case this way: 

Griffin was not a precedential Supreme Court decision. It was a circuit court decision by a justice who, when he becomes a justice, writes in the Davis case, he assumed that assumed that Jefferson Davis would be ineligible to hold any office, particularly the presidency. 

This point is so confused I don’t even know where to begin. First, the Case of Jefferson Davis came before Griffin’s Case. Second, Chase did not “become a Justice” after Davis’s Case. The Lincoln appointee decided both cases while riding Circuit. Third, the Case of Jefferson Davis had nothing to do with whether Davis could be President. I think she confused the Jefferson Davis case with the discussion of “office under the United States” and the Jeferson Davis horrible. It is difficult to pack so many errors in a single sentence. 

Also, as I noted above, she misstated what was in the Petitioner’s brief. They never conceded anything about “Office under the United States.” There were other questions that Justice Sotomayor asked that were incomprehensible. I had no idea what she was asking.

Justice Sotomayor’s recent comments about being “tired” and “frustrated” with her job, in my mind, signals that she may decide to retire at the end of this term. (For those curious, Justice Sotomayor was not wearing a mask during oral argument.) There is a democratic majority in the Senate with a democratic President. Come 2025, President Trump may have a Republican Senate. I have to imagine that Justice Sotomayor learned a lesson when RBG held on too long. And I remember well Justice Stevens’s oral dissent in Citizens United.

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